Business power and political economy analysis
The business power model, notably developed by Professor Pepper Culpepper in ‘'Quiet Politics,' would be another alternative for understanding the proliferation ofDPAs, especially where the interests of large corporations are involved.[1] This model sharpens the debate between those who believe that the interests of business lobbies always triumph and others who place businesses on an equal footing with various social actors in a pluralistic vision of politics. Culpepper demonstrates that the interests of corporate lobbies will generally prevail in situations of low salience and when governance rules are informal. Conversely, companies would not be more powerful than other political actors when the public issues that concern them are publicized and when formal governance rules apply to the debate. In other words, companies will not necessarily lose their political fight in high-profile situations, but both their lobbying tools and their important position in the economy will generally be insufficient to convert their preferences into public policies.
Business power and DP As: the Canadian example
The process leading to the Canadian adoption of DPAs is an interesting case to explore for a business power hypothesis. On June 6, 2018, the Canadian House of Commons indeed adopted its own version ofDPAs. They were subtly included in the Budget Implementation Act, which compiled more than 500 pages of different dispositions. All the members of the Standing Committee on Finance, mandated to adopt DPAs, expressed their discomfort and even their opposition to the omnibus legislation process for such a significant change to the Criminal Code. Some would have liked to hear more independent experts seeing the controversy implied by the DPAs. But time was running out for SNC-Lavalin, one of Canada’s national champion companies, accused of corruption.
According to Culpepper, salience will have a greater impact than formality in determining corporate power. Even though the Canadian process was ‘formal’ as opposed to informally adopted by the executive and Attorney Generals in the US, the process was rushed, opaque and possibly, quiet as well. The public consultation on the adoption of DPAs was already oriented towards the desired result. The consultation was led by a more industry-oriented Department of Public Works—rather than Justice Canada—and it was mostly attended by business lobbies and other corporate interests. The fact that the briefs filed were
not public, or that they could not be reviewed in the parliamentary process, also contributed to the interpretation of a ‘silent’ and technical process. The timeline also suggests the preference for protecting the business interest of SNC-Lavalin. Accused of corruption and criminal fraud in February 2015, SNC-Lavalin was about to start its criminal trial scheduled for September 2018, while DPAs were adopted in March 2018 in the hope of providing enough time for negotiations in this specific case. While the US had been increasing its use of DPAs since 2005, it is only after SNC was formally charged by the RCMP that the Canadian government seriously considered their adoption. If their functional or rational merits were as conclusive as their proponents suggested, then why would the Canadian government have waited for more than a decade to replicate the US experiment, and then rush the legislative process the way it did? There was no reason for such an eagerness other than the commencement of SNC’s trial. The Trudeau Cabinet was well aware of the controversy over DPAs as it was raised by all of the members of the Standing Committee on Finance who studied their adoption, including by a Liberal MP. The government could have responded to the requests of all members of this committee and taken more time to study the allowance of DPAs in a separate bill, and with broader participation of interest groups. However, such a process would have prevented SNC from negotiating a DPA before the commencement of its trial, and it may have raised the salience of a controversial issue. After all, DPAs may be an uneasy fit in the particular culture of Canadian corporate criminal law.[2] In any event, they played an important role in a political scandal that erupted in Canada after their implementation. Prime minister Justin Trudeau and members of his team were found by the ethics commissioner to have exerted undue influence on the Minister of Justice and Attorney General, Judy Wilson Raybould, in order to help SNC-Lavalin in its quest towards a DPA.
- [1] Pepper D Culpepper, Quiet Politics and Business Power Corporate Control in Europe and Japan (CUP 2011); Pepper D Culpepper and Raphael Reinke, ‘Structural Power and Bank Bailouts in the United Kingdom and the United States’ (2014) 42 Politics & Society 427. 2 Culpepper (n 67) 181. 3 2018, C-12. An Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures C-74. 4 Culpepper (n 67) 186.
- [2] Jennifer Quaid, ‘Negotiated Justice and Economic Crime: Lessons from the Canadian Experience’ (2017) SSRN No 3039707
